Students’ Rights to Free Expression/First Amendment Outline
***Notes to Presenter appear in italics and are preceded by asterisks throughout outline***
I. Intro:
Today we’ll be talking about schools’ ability to regulate various types of student expression
*****Some discussion questions to get the students on the right track……******
What are some types of expression? How do you all express yourself?
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Dress: clothes/uniforms; way you wear your hair; body piercing
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School publications: newspapers; yearbooks; websites
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How else?
o What about a student who refuses to salute the flag? Would that be a
form of expression?
Do you think the school can restrict your ability to express yourself?
Said differently, can the school restrict your ability to wear want you want?
Can they prevent you from printing certain things in your school paper?
Can school restrict or influence your means of expression even when you’re not at
school?
Why? Do you have a right to express yourself? What is the source of that right?
If you have a right to express yourself, what authority does the school have to
restrict your right? What is the source of the school’s authority?
______________________________________________________________________________
Hopefully, we’ll answer some of these questions today.
We’re going to focus on the rights provided by the U.S. Constitution, and we’re going to focus
on the First Amendment ….
…..but you should be aware that there are both some other sources of student protection and
other sources of school authority. For example – the state constitution, state statutes, and some
federal statutes affect a school’s ability to regulate student conduct.
…...also keep in mind that our discussion applies to public schools. If you have friends in private
schools, tell them they’re out of luck….private schools have much greater ability to control
student conduct. This is so because the 1st Amendment limits the government’s ability to restrict
free expression, and your public schools are “arms of the government,” but private schools are
not.
II. Legal Framework: The First Amendment in General
The First Amendment prohibits the government from “abridging the freedom of speech, or of
the press, or the right of the people to peaceably assemble.”
Sounds pretty absolute, doesn’t it?
Doesn’t sound like it leaves much room for discussion, but the Supreme Court (who gets
the final say over what the Constitution mean) has interpreted the 1st Amendment as
containing some implicit limitations:
***
Presenters may want to ask the students if they have learned about Marbury v.
Madison yet…..
Do you all know what I mean when I say the Supreme Court gets
the final say over what the Constitution? Have you learned about Marbury
v. Madison yet?
Basically, Marbury was a Supreme Court case in which the Supreme Court
held that the Constitution says what it says, but the Supreme Court decides
how the Constitution applies to certain situations and cases that present
themselves to the courts. When the Supreme Court decides these cases,
the decisions provide “precedent” or rules that we can then apply to other
situations and cases.
Looking at a series of Supreme Court cases interpreting the First Amendment, it is clear that the
Supreme Court tells us that the First Amendment is not absolute, it has certain limitations:
The first of those limitations is that ……
A. Certain Speech or Expressive Activity Can be Regulated Because of its Content
The Supreme Court says that the following types of speech are not entitled to First
Amendment protection…..
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Obscenity
The Court defines obscenity as a “Public portrayal of hard core
sexual conduct for its own sake, and for the ensuing commercial
gain”
Provide examples?
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Defamatory speech – libel (written); slander (spoken)
The Court defines defamatory speech as speech that contains a
knowingly false statement
Examples?
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Fighting words
The Court says that “abusive epithets, which, when addressed to
the ordinary citizen, are inherently likely to provoke a violent
reaction” are not entitled to 1st amendment protection
Examples?
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Speech that advocates imminent lawless action
Words that would be likely to incite a riot do not receive 1st
Amendment protection
Examples?
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Activities that are not “symbolic speech”
Activities that do not intend to communicate a particularized
message that could be easily understood by the recipient of the
message are not entitled to First Amendment protection
Example: Body piercing, wearing sunglasses, revealing clothes
not entitled to protection vs. tee-shirt that says “US must not bomb
Iraq”
Another limitation on First Amendment is that….
B. Certain Speech Can be Regulated As to Time, Place, and Manner
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Generally, the government can restrict the time, the place, or the manner in
which certain speech is communicated so long as:
1. the restriction as to time, place, or manner is not used to
regulate the content of the speech (what is being said)
2. the time, place, or manner restriction serves a significant
government interest
3. the restrictions are “narrowly tailored” to serve the significant
government interest, and
4.
the restrictions allow ample alternative channels of
communication
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What would be an example?
If the Democratic party wanted to hold a rally in downtown Charlotte, the
city government could require the Democratic party to obtain a permit, to
hold their rally at a certain place, and/or at a certain time.
C. Certain Speech Can Be Regulated Due to the Setting in Which the Speech Occurs
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Public Forum
Public forums are street corners, public parks, any place that is
traditionally freely available to the public for all types of expressive
activities.
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The government will have a difficult time attempting to regulate
protected speech in a “public forum”
Non-Public Forum
Non-public forums are government properties that are not really open
to members of the public for expressive activity. They generally have a
purpose or a mission associated with them – hospitals, prisons, schools
are examples.
The government can impose reasonable restrictions on protected
speech in order to allow the intended activity, mission, or purpose to
continue…
****Discussion points:
What is the purpose/the mission of school?
To educate students – teach reading, writing, calculus?
Is it more than that?
Is part of education teaching students appropriate ways of
interacting, of functioning in society?
The Supreme Court thinks so: They view part of school’s
mission as “inculcating” values, traditions, and societal
norms – Bethel case – discussed below
Given this mission, what are free speech activities that would
disrupt it? What would be a reasonable restriction of that
activity?
How about standing up in the middle of your biology exam
and stating the reasons you agree or disagree with the
President’s current environmental protection policies?
Does that type of activity qualify for protection (is it one of
the categories that does not – like obscene speech)??
Would giving a speech like that in the middle of an exam
disrupt the school’s mission?
Could the school restrict the student from making such a
speech – or could the school discipline the student for
making such a speech?
II. Applying the First Amendment Rules to Schools
Even though schools are a non-public forum and the government can therefore
reasonably restrict certain free speech activities that disrupt the mission of the
school, students’ First Amendment rights must be protected:
The Supreme Court stated:
“students don’t shed their constitutional rights at schoolhouse gate”
A North Carolina state court opinion of Givens v. Poe (1972) said:
In our system, state-operated schools may not be enclaves of
totalitarianism. School officials do not possess absolute authority over
their students. Students in school as well as out of school are 'persons'
under our Constitution. They are possessed of fundamental rights which
the State must respect, just as they themselves must respect their
obligations to the State
That [schools] are educating the young for citizenship is reason for
scrupulous protection of Constitutional freedoms of the individual, if we
are not to strangle the free mind at its source and teach youth to discount
important principles of our government as mere platitudes." Quoting West
Virginia State Board of Education v. Barnette, U.S. (1943)
Some Important Supreme Court Precedents
A. Tinker v. Des Moines Independent School District, 1969 –
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FACTS: A student wore a black armband around her arm to protest the
United States’ involvement in the Vietnam War. She was suspended by the
school. She sued, claiming her First Amendment rights were violated. The
Supreme Court agreed, noting that “students do not shed constitutional
rights . . . at the schoolhouse gate.”
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The Court noted that her wearing the armband constituted symbolic speech
– insofar as it was intended to communicate a message – and such speech
was protected.
HELD: Ultimately the Court ruled that, as protected speech, it could not
be forbidden without a demonstration of “reasonable evidence of
substantial disruption or material interference with the schools mission.”
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B. Bethel School District v. Fraser, 1986
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FACTS: Student was running for class officer and gave a sexually
suggestive speech to the student body at a school assembly. He was
subsequently suspended and sued the school on the basis of the First
Amendment. At trial, the school presented evidence that many students
were embarrassed by the speech and that teachers had to abandon their
lesson plans after the speech to address student concerns and questions
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HELD: The Supreme Court ruled that although his right to make a speech
was entitled to First Amendment protection, the school could reasonably
restrict any such speech that was vulgar and disruptive to the schools
mission of inculcating fundamental values.
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REASONING: The Court was influenced by the fact that classes were
disrupted by the speech, and also noted that part of the school’s mission is
to “inculcate the fundamental values and norms” of our society into
students. The sexually suggestive speech was inconsistent with the
school’s mission because it disrupted the learning environment and was
contrary to societal norms
C. Hazelwood School District v. Kuhlmeier, 1988
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FACTS: School newspaper was produced as part of a school journalism
class that was part of school curriculum and for which students received
credit. The journalism teacher and the principal both had the opportunity to
review submissions to the paper prior to them being printed. The student
editors wanted to include an article about pregnant students (generally,
without naming names) at the school, and an article about the experiences
of a student whose parents were going through a divorce. The principal
did not permit the articles to be printed. The students sued, claiming that
they had a First Amendment right to publish the articles.
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HELD: No violation of rights
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REASONING: The Court determined that the paper was part of a school
sponsored activity and, as such could be restricted in a manner reasonably
related to legitimate pedagogical concerns (in this case, a concern that the
stories were not sufficiently researched and were inappropriate for some of
the school’s younger students). The Court also noted that, as something
that could be viewed by members of the general public, the paper carried
the imprimatur or “endorsement” of the school and thus the school could
reasonable restrict its content.
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ASK STUDENTS – WHAT ARE THE RULES THESE CASES TEACH US?
1.
Is the speech protected speech in the first place?
- No protection for fighting words, etc.,
- No protection for “symbolic” speech that is not “symbolic”, etc.
2.
Does the speech involve a substantial disruption to the school’s mission or
environment?
- School must be able to reasonably forecast evidence of a substantial
disruption.
- Mere apprehension that an activity or speech will cause a disturbance is
insufficient reason to limit a student’s exercise of First Amendment rights
3.
Is the speech part of school sponsored activity?
- School can impose restrictions on student expression if the restrictions
are reasonably related to legitimate pedagogical concerns
4.
Does the speech arise in a forum which may carry the school’s imprimatur?
- Could someone mistake the speech/activity as being endorsed by the
school?
*****WITH THIS FRAMEWORK, STUDENTS CAN ANALYZE ANY FIRST
AMENDMENT CASE IN SCHOOLS. SUGGEST HYPOTHETIC EXAMPLES, OR USE
SOME THAT STUDENTS SUGGESTED AT THE BEGINNING OF CLASS AND GIVE
STUDENTS A CHANCE TO APPLY THE RULES TO VARIOUS SITUATIONS.*****
see below for examples
Student wears confederate flag insignia on shirt?
Is it protected speech?
- some may wonder whether it qualifies as “fighting words”
- some may wonder whether it communicates a particular message
Probably turns on whether it would cause a substantial disruption.
Student wears Marilyn Manson t-shirt?
Probably turns on whether it’s intended to communicate message –
probably not symbolic speech.
Also, even it is, could it be considered vulgar and thus more likely to cause
disruption and therefore easier to restrict.
Other forums for speech – website, school radio, television, etc.
Is the restriction reasonably related to legitimate pedagogical concerns?
- Schools can censor based on concerns about appropriateness
> could pull article in elementary setting about whether
Santa Clause is real
Does the speech occur in or relate to a school sponsored activity that can
be said to part of the educational program? Does it carry the imprimatur of
the school?
How closely associated with the school is the forum for the
activity/speech?
- Closer ties if faculty supervision, designed to teach specific skills,
uses the school name or resources
Romano v. Harrington (NY) –
newspaper not incorporated into formal curriculum, so not “true
classroom for 1st Amendment purposes…..in truly extra-curricular
activity, students’ speech and expression activities were less
limitable.
How about an underground paper or website?